He plans to expel hundreds of thousands of refugees who have become productive members of American society. But they’re fighting back.

January 25, 2019

Hiwaida Elarabi, a longtime health educator with a master’s degree from Brandeis University, has lived and worked in the United States since 1997. For 16 of those years, she was with the Massachusetts Department of Public Health, working with refugee and immigrant communities to help them successfully access and navigate the state’s health-care system. More recently, she’s been working as a member of the support staff for students at an online university.1

In 2015, shortly after starting that job, Elarabi—who hails from the city of Wad Medani in southeast Sudan—decided to follow through on a long-standing dream of running a restaurant, so she took out loans and opened a chicken-wing joint in her hometown of Brighton, Massachusetts. When the New England Patriots were playing, she’d put the game on TV, and customers would flock in to buy wings and watch the home team.2

Then, shortly after Donald Trump’s inauguration, the Sudanese immigrant’s American dream hit the skids. In her mid-50s, with a successful career and now a newly opened business, Elarabi suddenly faced the prospect of being deported back to the violent homeland she had fled decades earlier.3

The public-health worker turned restaurateur lives in the United States under a federal initiative known as “temporary protected status,” or TPS, which was created as part of the Immigration Act of 1990. She is one of nearly half a million residents—people from Sudan, Haiti, El Salvador, Honduras, Nicaragua, Nepal, and a handful of other countries—who arrived in the United States without documents, or who overstayed a tourist visa, at some point in the 1990s, and who were then allowed to live and work here because of catastrophically dangerous conditions in their home countries. In some instances, those conditions were linked to wars; in others, to natural disasters, economic collapse, or both.4

Forcing these people to return was, the State Department and Congress agreed, too dangerous. Allowing them to work in the United States was seen as both the best humanitarian response and as a way of serving America’s own self-interest—drawing them out of the shadows, in which so many millions of undocumented people live, and into the taxable economy. It was a compromise similar to the one later put into effect by Barack Obama for a different group of immigrants with his executive order establishing the Deferred Action for Childhood Arrivals (DACA) program.5

Under Republican and Democratic administrations alike, from George H.W. Bush to Obama, TPS was renewed. It was a low-key program that never attracted the kind of lightning-rod furies that have accompanied DACA since its inception. What started as a short-term, temporary program grew into seeming permanence—albeit a tenuous one, in which TPS holders, unless they were sponsored by a spouse or adult child, generally lacked a pathway to permanent residency or citizenship. Every 18 months, they submitted a new application for temporary protected status along with a $495 fee, went through a background check, and, if everything panned out, were granted a continuation of their status.6

As I wrote on TheNation.com last year (“Trump to 200,000 Salvadoran Immigrants: Drop Dead”), over the decades, many of the men and women living under TPS married and had US-born children. Some went to college, opened businesses, bought homes, and began to save for retirement. In short, even as they continued to live in a legal gray zone while Congress kicked the can regarding a permanent resolution of their status ever farther down the road, they became fully embedded in their local communities, as American as any of the other tens of millions of immigrants in this country.7

Current Issue

And then came Trump, who from day one had TPS and its often poor, nonwhite beneficiaries squarely in his sights.8

“What will happen next year if I’m not able to have a job, a driver’s license?” asks Wilna Destin, a Haitian-born mother of two who lives in Orlando, Florida, and is employed by the labor union Unite Here, helping to organize the hundreds of TPS holders who work at nearby Disney World. “Without TPS, what are we going to do? Haiti is not ready.”9

Destin fears that if she and her family have to leave for Haiti, her children—15-year-old Hnaida and 11-year-old John—will not have access to school, and their lives will be devastated by extreme poverty. Hnaida “thinks about it all the time,” Destin continues. “She comes to me and says, ‘Mama, what am I going to do if they send us to Haiti?’ My son also; they’re very afraid. I’m not rich, but I’m here for them. They’ve got my love. My kids are my life—this is what I’ve got.”10

Shortly afterTrump took office, the Department of Homeland Security, then run by John Kelly—a retired Marine Corps general and anti-immigrant hawk who once said that he would admit between zero and one refugee into the United States if he had his druthers—began rolling back TPS designations for one country after another. Haitians, a group that Trump has repeatedly expressed something bordering on visceral disgust toward, were among the first to be challenged. “I felt devastated,” Destin says. “I’m nothing, after being in this country all these years. I follow the law. It hurts from the bottom of my heart. My family feels it. It hurts.”11

When Kelly moved on to a new role as White House chief of staff in 2017, his successors at the Department of Homeland Security, Elaine Duke and Kirstjen Nielsen, continued his anti-TPS policy. Within months, well over 90 percent of recipients were facing the prospect that, when their renewal for TPS was due, they would be told to pack their bags, leave their US-born children behind, and return to their home countries.12

Fearing that she would need cash in a hurry, Elarabi “sold my restaurant,” she recalls sadly. “I’m still working with the university. But it’s nerve-wracking.” She knows that if her TPS is revoked, she will lose her work permit, and then the university will be unable to continue employing her. “I’m not about to go back to Sudan,” Elarabi says. “And I don’t see myself living here without status. My life is in limbo. I am 55 years old. I am not a person who can live in the shadows—I don’t have the energy to live in the shadows. I built a life here. I’m here 21 years. It will be very hard to start all over.”13

In 2017, career officials at the State Department and US Citizenship and Immigration Services (USCIS) began writing a series of recommendations on the TPS program and whether it should be continued. As those documents clearly show, the officials started out by acknowledging the persistence of conditions in the various TPS-designated countries that, under federal law, would mandate continuation of the program.14

One such document, a set of private notes written by Duke as the acting secretary of homeland security, noted that conditions in the Central American countries included in the TPS program remained dangerous, and that ending it would likely lead to a surge in illegal immigration as frantic deportees tried to rejoin their families stateside.15

Even so, internal White House memos show that the Trump administration was hellbent on ending TPS, whatever the advice from the relevant agencies. One of these detailed a meeting among the policy principals convened specifically to coordinate the conditions and process for terminating TPS for people from El Salvador, Honduras, Nicaragua, and Haiti. The clear implication of the memo is that a political decision had already been made, regardless of conditions on the ground, and that justifications were to be conjured up merely to provide cover for that decision.16

In early 2018, the American Civil Liberties Union, the National Day Laborer Organizing Network, and several private California law firms filed suit to block the ending of TPS for people from Nicaragua, Haiti, El Salvador, and Sudan—the first set of countries to be excluded from the TPS umbrella. As the plaintiffs found out during the legal proceedings, documents pertaining to the program were politically massaged at the urging of extremist appointees like Robert Law (who moved from the anti-immigration think tank Federation for American Immigration Reform to USCIS early in the Trump administration) to recommend that TPS be terminated for certain countries, contradicting earlier findings.17

In fact, behind the scenes, Law was urging the administration to end TPS designations for any country whose former residents had been protected by it for more than three years, regardless of the current conditions. In an October 22, 2017, e-mail regarding Haiti sent to Kathy Kovarik, chief of the Office of Policy and Strategy at USCIS, Law wrote: “The draft is overwhelming [sic] weighted for extension which I do not think is the conclusion we are looking for.” Some documents noted that the conditions in Sudan remained too dangerous to terminate temporary protected status for Sudanese recipients—but concluded that the Department of Homeland Security would be recommending termination nonetheless.18

Within months, it became clear that the aggressive rollback of TPS would affect hundreds of thousands of people, both the recipients themselves and their children. One such person is Elsy Flores de Ayala, a Washington, DC, resident originally from El Salvador. She has three children: The oldest came with her to the United States as an infant; the other two are US citizens. Facing the prospect of deportation, Flores de Ayala began planning for the worst. She strategized how she would leave her two younger children—one of whom, Joanna, is currently preparing to attend university and aspires to be a doctor or an engineer—in the United States with some elderly relatives. She and her husband briefly considered moving to Canada or perhaps even Spain.19

Her daughter Joanna worries that her life could be upended by a double whammy. She’s not only terrified that her parents could be deported; she also fears that, if they are, she will have to defer her college dreams to support her younger brother. “We are fighting for our rights—my parents’ rights and the families going through this,” she tells me.20

The plaintiffs in the ACLU lawsuit argued that the Trump administration’s action violated the Administrative Procedure Act, which since 1946 has governed how federal regulations can be proposed and executed, and also that, since Trump had singled out places like Haiti as “shithole countries,” the action was capricious and clearly in violation of the equal-protection clause of the US Constitution. The plaintiffs included in their filing TPS holders as well as a number of their children. Hiwaida Elarabi was among them. So were Wilna Destin and her daughter Hnaida. So, too, was Flores de Ayala.21

“The adoption of the [proposed] new rule” limiting temporary protected status to just three years per country “was a tactic employed to justify what were otherwise completely unacceptable positions,” argues Ahilan Arulanantham, the ACLU’s lead attorney on the case.22

Last October, California District Court Judge Edward Chen sided with the plaintiffs and issued a temporary injunction blocking the termination of the program for the four countries named in the suit. That same month, the Trump administration filed an appeal with the Ninth Circuit. If, as is widely expected, the administration loses that appeal, it will take the case to the Supreme Court. If it ultimately wins—a distinct possibility, given the conservative bent of the high court today and its previous ruling upholding Trump’s travel ban—the administration has promised to hold off on initiating deportations for six months after the end of legal proceedings. In practice, this means TPS holders covered by the ruling are likely to be able to stay in this country for the next year or so, at the very least. It is also conceivable that the legal proceedings will extend beyond the life of the current administration.23

Meanwhile, attorneys in Boston have filed a similar suit seeking to prevent the imminent termination of TPS for several threatened groups. In courts around the country, lawsuits are in the works to protect people from Nepal and others now facing deportation. Given the similarity of the reasoning between these lawsuits and the one filed by the ACLU, Arulanantham believes that the California ruling is likely to be replicated in these cases as well.24

All of this buys TPS holders some precious time to organize a grassroots movement in their support, and also to press Congress for badly overdue legislation to protect these half-million people and their hundreds of thousands of US-born children. “My family wants to fight back,” says Orlando Zepeda, a soft-spoken Salvadoran TPS holder in Los Angeles, whom I first interviewed in late 2017, when the administration announced the initial rollbacks.25

Sitting in the poster-filled ground-floor offices of CARECEN, an LA-based group that works with Central American immigrants, Zepeda, a middle-aged maintenance worker who fled his country’s civil war as a teenager in the 1980s, recalls how that conflict broke apart families, and speaks of how ending TPS would once again separate parents from their children.26

Like so many thousands of other TPS holders, Zepeda has made a life for himself in the United States. Largely unschooled in his home country, he learned English in Los Angeles and graduated from high school in 1993, at the age of 26. It was, he remembers, smiling broadly, one of his proudest and happiest moments. He got married, had children, worked for years in a car dealership, then began doing maintenance work at an assisted-living facility. For nearly 20 years, he also volunteered with a ministry run by his church, St. Thomas the Apostle, visiting jails and hospitals on a near-daily basis. It was in this ministry that he met the fellow volunteer who would later become his wife.27

Now, Zepeda is in the fight of his life to preserve everything he has worked so hard for in the United States. He spends all of his free time organizing fellow TPS recipients. Last year, as one of the founding members of the National TPS Alliance, Zepeda was in a caravan that toured the country building support for protecting these families. The caravaners held meetings in churches, community centers, and union halls; they slept on floors, in basements, wherever room could be found to host them. “In every state, we had people there already organizing, welcoming the bus,” he recalls.28

More than 80 members of Congress have now signed a letter, written by California Representative Jimmy Gomez, urging the administration not to terminate TPS. And a number of bills, written by both Democrats and Republicans, have begun circulating that would provide some residency protections for TPS holders.29

“I’m optimistic,” Zepeda says cautiously, “but there’s a lot of work to do. The court ruling is important—it gives us space to breathe and to continue. We are preparing a meeting in Washington this February. We’re thinking of getting 5,000 people there, TPS holders. When lawmakers see a lot of people, they pay more attention to what we are doing.”30

However, it’s hard to imagine Trump signing a bill that grants residency rights to people he so clearly loathes. And so, for now—like so much else when it comes to immigration policy in the Trump era—it is the courts, as well as the national organizing efforts by grassroots groups, that are standing between Trump’s cruel aspirations and the devastating, family-destroying wholesale deportations.31

It is, at best, a precarious state of affairs. While the District Court ruling in California grants a short-term reprieve, it hasn’t ended the corrosive, omnipresent fear of the future that TPS families are now living through. “I have nightmares about my parents dying,” confides Joanna, Elsy Flores de Ayala’s daughter. “These are the dreams I remember. They feel so real. I wake up crying. I tell my family about the dreams. They tell me to have hope.”32

“There’s no security” back in Haiti, Wilna Destin frets as she contemplates the possibility that, one day in the not so distant future, the US government will tell her to pull up stakes and leave. “We don’t have hospitals, anything—just trouble all the time,” she adds. “I came to America because everybody is looking to come to the US for the safety of their life.”33

Sasha AbramskyTwitterSasha Abramsky, who writes regularly for The Nation, is the author of several books, including InsideObama’s Brain, Breadline USA, American Furies, The American Way of Poverty, The House of 20,000 Books, and, most recently, Jumping at Shadows: The Triumph of Fear and the End of the American Dream. Subscribe to The Abramsky Report, a weekly, subscription-based political column, here.

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